Sentencing
in Cheating Offences

The
offence of cheating can cover a myriad of transactions with differing
modus operandi involving different sums of money. Further, it is common
for an accused person to face multiple cheating offences, which gives
rise to the possibility that the prosecution may elect to proceed on
some charges and have the remaining charges taken into consideration for
sentencing. Sometimes, the cheating scam may involve several offenders,
each with differing culpability. Therefore, depending upon the
circumstances, sentencing in cheating cases can sometimes be difficult
to predict. In this article, Mr Lee Teck Leng discusses sentencing
considerations in cheating offences in general.

The
Starting Point in Sentencing

Generally
speaking, a person accused of cheating can be charged under either sections 417
or 420 of the Penal Code (Cap 224) (the Code). The starting point in sentencing
would invariably be the section under which the offence has been classified.

Simple
cheating is punishable under section 417 of the Code with imprisonment for a
term of up to one year, or with a fine or both. Imprisonment is not mandatory.
Generally, if the quantum involved is reasonably small and there are no
aggravating factors, the courts would be prepared to impose only a fine.

Aggravated
cheating is punishable under section 420 of the Code with imprisonment for a
term of up to 7 years, and the offender is also liable to fine. Imprisonment is
mandatory. Hence, the best sentence that any accused can possibly expect under
section 420 would be one day’s imprisonment coupled with a fine. This can
happen only if there are no aggravating factors whatsoever and the mitigating
factors are exceptional.

For
instance, in Seaward v PP [1994] 3 SLR 369, the appellant was the
chairman and director of the Calvary Charismatic Centre and he was convicted of
conspiring to cheat Hong Leong Finance Ltd by inflating the price of the goods
in order for the Centre to obtain a higher loan quantum in the hire purchase
financing. Despite claiming trial, he was sentenced to one day’s imprisonment
and fined $10,000. On appeal, the sentence was upheld.

Another
case on point would be Edmund Nathan v PP [1997] 3 SLR 782. The appellant
was an advocate and solicitor who was jointly convicted with his client of
cheating a bank by deceiving the bank into believing that the purchase price of
a property was $190,000 when the client’s intended purchase price was
$110,000. Despite claiming trial, the trial judge imposed a nominal custodial
sentence of one day’s imprisonment and a $10,000 fine, bearing in mind the
mitigating factors, in particular, the fact that the appellant did not
personally gain anything from the offence. On appeal, the sentence was affirmed.

However,
notwithstanding Seaward and Edmund Nathan, it must be emphasised
that the courts are generally not inclined to impose such a nominal one-day
custodial sentence, unless the case is truly exceptional.

As
such, if an accused faces a charge under section 420, it is imperative that the
solicitor makes representations to the Attorney-General’s Chambers to try and
reduce the charge to one under section 417. As a rule of thumb, the accused must
make full restitution before the representations can have any serious chance of
succeeding.

The
Quantum Involved

In
almost all cheating cases, the accused would have gained financially. The courts
will always look at the quantum involved in the offence as a starting guide.
Naturally, the higher the quantum, the heftier the sentence.

In
Liza bte Ismail v PP [1997] 2 SLR 454, the appellant was convicted on,
inter alia, five cheating charges. She committed the offences while she was an
accounts clerk with a company. The amounts involved in the five cheating charges
were $500, $1,040, $1,520.64, $2,047.50 and $4,825. The trial judge imposed a
sentence of two weeks’ imprisonment for the cheating charge involving $500,
one month’s imprisonment for the next three charges, and a sentence of two
months’ imprisonment for the charge involving $4,825. The sentences were not
disturbed on appeal.

In
Ng Kwee Seng v PP [1997] 3 SLR 205, the appellant was convicted on one
charge of cheating the victim into handing him $8,000 in cash. He had deceived
the victim into believing that he owned a bunkering business and that the victim
could earn $4,000 profit by investing a sum of $8,000 in the business. The trial
judge imposed a sentence of five months’ imprisonment, which was affirmed on
appeal.

In
Foo Tiang Khim Julian v PP [1998] 1 SLR 313, the appellant was convicted
on one charge of cheating a bank officer by deceiving her into believing that he
was authorised to encash a $30,000 cheque. The trial judge imposed a sentence of
eight months’ imprisonment after noting that the usual punishment for a
cheating offence involving $30,000 was actually 12 months’ imprisonment. On
appeal, the sentence was affirmed.

In
Ong Eng Huat v PP [1998] 2 SLR 863, the appellant was convicted on two
charges of cheating two different car dealers into paying him two deposits
amounting to $40,000 and $25,000 after deceiving them into believing that he had
a car to sell to them. The trial judge imposed a sentence of nine months’
imprisonment per charge. The sentences were not disturbed on appeal.

In
Gunasegeran s/o Pavadaisamy v PP [1997] 3 SLR 969, the appellant was
convicted of, inter alia, one charge of cheating a Japanese person into paying
him $60,568 for the purchase of a car. The trial judge imposed a sentence of
eight months’ imprisonment. On appeal, the sentence was enhanced to 12
months’ imprisonment, in the light of the aggravating factor that the victim
was Japanese and the appellant’s conduct gave Singapore a bad name.

In
Syed Jafaralsadeg bin Abdul Kadir v PP [1998] 3 SLR 788, the appellant
was convicted on one charge of cheating the victim into paying a sum of $50,000
as commission in the purchase of a property. The trial judge imposed a sentence
of 18 months’ imprisonment. On appeal, the sentence was not disturbed.

In
Tan Sai Tiang v PP [2000] 1 SLR 439, the appellant pleaded guilty to ten
charges of cheating the Singapore Swimming Club by submitting false jackpot
vouchers to the club’s cashiers. Another 390 similar charges were taken into
consideration against her. The total amount involved in the 400 charges was
$102,959.80. The appellant made full restitution. The trial judge imposed a
total sentence of 24 months’ imprisonment. On appeal, the total sentence was
reduced to a total of 18 months’ imprisonment.

In
Gan Bee Hwa & Ors v PP (MA 7/98, unreported), the three appellants
were charged with conspiring to cheat the victim into selling his apartment to
one of the appellants for a lower sum of $1.99m when there was actually an offer
for $2.1m, thereby causing the owner to lose about $110,000. The appellants
thereafter sold the said apartment for $2.32m, thereby making a wrongful gain of
about $320,000. On appeal, the 24 months’ imprisonment sentence imposed by the
trial judge on the mastermind was affirmed.

In
Lee Foo Choong Kelvin v PP [1999] 4 SLR 318, the appellant was convicted
on one single charge of cheating the victim of a sum of US$300,000 by deceiving
him as to the conditions for certain loan applications. The trial judge imposed
a sentence of 24 months’ imprisonment. On appeal, the sentence was enhanced to
36 months’ imprisonment in the light of the huge sum involved (about
S$500,000) and the appellant’s defiant conduct.

In
Er Joo Nguang v PP [2000] 2 SLR 645, the appellant was convicted by the
High Court on appeal on a cheating charge for deceiving the victim into
delivering goods worth US$301,673 (about S$500,000), which he later sold. The
learned Chief Justice imposed a sentence of four years’ imprisonment.

From
the decided cases, the sentencing tariffs for cheating offences under section
420, based on the quantum in each charge, would be as follows:

Amount
involved

Sentence

Authority

Below
$1000

2–4
weeks

Liza
bte Ismail

$1,000–$3,000

1–2
months

Liza
bte Ismail

$3,000–$5,000

2–4
months

Liza
bte Ismail

$5,000–$10,000

5–6
months

Ng
Kwee Seng

$10,000–$30,000

6–12
months

Foo
Tiang Khim Julian

Ong
Eng Huat

$30,000–$60,000

12–18
months

Gunasegeran
s/o Pavadaisamy

Syed
Jafaralsadeg bin Abdul Kadir

$60,000–$100,000

18–24
months

Tan
Sai Tiang

$100,000–$300,000

24–36
months

Gan
Bee Hwa & Ors

$300,000–$500,000

36–48
months

Lee
Foo Choong Kelvin

Er
Joo Nguang

The
Modus Operandi

The
nature and manner in which cheating offences occurred are important sentencing
considerations. If a cheating offence involves a deception that takes on a
degree of sophistication, or if the accused was part of an organised syndicate,
that would be an aggravating factor that would attract a much higher sentence.

For
instance, heavy sentences are imposed for cases involving credit card frauds
which are both sophisticated and almost always syndicated. In Ong Tiong Poh v
PP [1998] 2 SLR 853, the appellant faced, inter alia, eight charges of
abetting his accomplices to cheat with fake credit cards. The value of the items
set out in the eight charges ranged from $500 to $3,078, which would attract
sentences not exceeding four months’ imprisonment per charge. On appeal, the
learned Chief Justice held that the appellant was part of a sophisticated
syndicate, capable of committing credit card fraud on a large scale and skilled
at avoiding detection, and imposed a sentence of 20 months’ imprisonment for
each abetment charge and ordered three sentences to run consecutively.

Even
if the deception was not in any way sophisticated but is abhorrent in the eyes
of the law, the courts will still impose a substantial term of imprisonment
because of public interest, even though the quantum of money cheated may not be
very significant.

For
instance, in Shan Rajagopal v PP (MA 191/96), the appellant was a lawyer
convicted on, inter alia, two counts of cheating the victim into believing that
he could ask someone in the police force and the Attorney-General’s Chambers
to withdraw all the charges against the victim, thereby inducing the victim into
handing him two sums of $21,000 and $20,000 meant as bribes. On appeal, the
sentences were enhanced to three years’ imprisonment per charge, with two
sentences to run consecutively.

Even
if a cheating offence does not involve any money, a substantial term of
imprisonment would be imposed if the cheating scam was well organised and has
far-reaching impact if left unchecked.

For
instance, in Jimina Jacee d/o CD Athananasius v PP [2000] 1 SLR 205, the
appellant was convicted on four charges of abetting persons to cheat the counter
staff at Singapore’s Changi International Airport terminal. The offences arose
out of a fraudulent scheme to enable some Sri Lankans to get on board an
aircraft bound for Sydney, even though they did not possess the requisite visas
to enter Australia. The plan was for the principal offenders, who had the
necessary visas, to check in for a flight which was scheduled to depart for
Sydney from Singapore, and the boarding passes procured by these principal
offenders would subsequently be handed to the Sri Lankans. For her part in the
scam, the appellant received a sentence of nine months’ imprisonment per
charge, two of which were ordered to run consecutively.

Making
Restitution

One
of the key considerations in sentencing cheating offenders is whether or not the
accused has made restitution to the victim. It is trite law that making
restitution is generally considered a mitigating factor that would usually
entitle an accused person to a discount in sentencing (see Krishan Chand v PP
[1995] 2 SLR 291 and Tan Sai Tiang v PP). The reason is simple: by making
restitution, the accused would have disgorged the ill-gotten gains and he would
no longer stand to gain financially from the offence.

As
regards the sentencing discount given, it would be around one-third off the
normal sentencing tariffs. This can be gleaned from Lim Maureen & Anor v
PP (MA 133/98). In that case, the appellant cheated two bank officers by
applying for hire purchase using false delivery orders and invoices. The first
charge involved $25,000 while the second charge involved $25,781. The appellant
made full restitution for the second charge but he did not make any restitution
for the first charge. The trial judge imposed a sentence of nine months’ and
six months’ imprisonment for the first and second charges respectively, even
though they involved almost identical sums. The one-third discount for the
second charge was obviously credit given to the appellant for the restitution.
On appeal, the sentences were affirmed.

Offenders
Facing Multiple Charges

It
is very common for an offender to face multiple cheating charges, each involving
different sums of money. Upon representations, the Attorney-General’s Chambers
would usually agree to proceed on a few charges and have the remaining charges
taken into consideration, if the accused elects to plead guilty. There are three
points to note in such cases.

First,
the effect of taking into consideration outstanding offences is to enhance the
sentences that would otherwise be awarded (PP v N [1999] 4 SLR 619). In
the circumstances, on a per charge basis, the sentences are very likely to
increase. Depending on the number of charges taken into consideration and the
aggravating factors, the sentences per charge could be several times the normal
sentencing tariff.

For
instance, in Tan Sai Tiang v PP, the quantum involved in the ten cheating
charges proceeded on ranged from $220 to $771.20. Although the tariff sentence
for a quantum less than $1,000 is two to four weeks’ imprisonment, the trial
judge imposed on the appellant a sentence of six months’ imprisonment per
charge, of which four were ordered to run consecutively. On appeal, the sentence
of six months’ imprisonment per charge was affirmed, but only three sentences
were made to run consecutively, giving a total of 18 months’ imprisonment.

Secondly,
in determining the total sentence to be imposed against an offender facing
multiple charges, the courts would not look only at the quantum involved in the
charges proceeded on. Instead, the courts would usually consider the total
quantum involved in all the charges faced by the accused, including those
charges that were merely taken into consideration for sentencing. This is
because the number of charges that the prosecution decides to proceed on in any
given case is strictly a matter of plea bargaining between the parties. The
number of charges proceeded on and the quantum involved in those charges would
usually not be allowed to detract from the full extent of the financial gains
made by the accused.

Tan
Sai Siang v PP amply illustrates this point. In that case, the total amount
involved in the ten charges proceeded on was $4,431.20. If the appellant had
been charged with one single cheating offence involving $4,431.20, the
sentencing tariff would have been only two to four months’ imprisonment. Yet,
she received a total of 18 months’ imprisonment because the court obviously
bore in mind the total quantum involved in the 400 charges was $102,959.80.

Thirdly,
the total sentence imposed on an offender convicted of multiple charges would
still bear some semblance to the sentence that may be passed in a case where an
offender is convicted of a single cheating offence involving the same sum of
money. This is due to the fact that from the victim’s viewpoint, the sentences
to be imposed should not, logically speaking,
depend greatly on whether the victim was cheated a hundred times amounting to a
total of $250,000 or cheated once to the tune of $250,000. Having said that, it
is also quite clear that an offender who has cheated a victim of small amounts a
hundred times over is a serial offender and he would rightly be regarded as
being more culpable than an offender who cheated only once, albeit of a large
sum. Amalgamating both perspectives, it would appear that the total sentence
imposed on the serial cheat would probably be slightly higher than the sentence
imposed on an offender convicted of a single cheating offence, if the total
quantum cheated is identical in both instances. This point is important because
it means that the sentencing tariffs tabulated would still be applicable for
cases involving multiple charges.

Multiple
Offenders

It
is common for cheating scams to involve more than one offender. As a rule,
consistency in sentencing is a desirable goal, but it is not an overriding
consideration (Yong Siew Soon v PP [1992] 2 SLR 933). In sentencing
multiple offenders for a cheating scam, the courts will always consider the
culpability of each individual offender and impose different sentences on the
various offenders to properly reflect the difference in their culpability if
necessary.

For
instance, in Gan Bee Hwa & Ors v PP, the first appellant was the real
estate agent appointed to sell the victim’s apartment. The second appellant
was the one who masterminded the scam. The third appellant was the appointed
buyer who bought the apartment from the victim at a lower price. The trial judge
sentenced the first and second appellants to 24 months’ imprisonment and the
third appellant to 20 months’ imprisonment. On appeal, the learned Chief
Justice reduced the first appellant’s sentence to six months’ imprisonment
on the ground that she was a new real estate agent with that particular deal
being her very first transaction and she was also manipulated by the second
appellant.

Conclusion

The
sentencing tariffs tabulated based on some decided cases would only be a general
guide. Other factors such as whether the accused has shown remorse by pleading
guilty and making restitution, the precise way in which the deception occurred,
whether the prosecution is asking for a deterrent sentence, the total number of
charges proceeded on and taken into consideration, etc, must all be taken into
account when advising on the possible sentencing range which an accused faces
for his cheating charges.